Central Administrative Tribunal - Madras
N Moorthy vs Bharat Sanchar Nigam Ltd on 4 July, 2023
id | I OA 645/2016 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA NO.645/2016 Dated day the 4" day of July Two Thousand Twenty Three CORUM: HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER 1. N. Moorthy, ( working as Cook) Aged 42 years, S/o. Netesan, No. 65, Karunanidh! Teru, Geetha Ilam, Uiganathan Puram, Trichy - 20 2. 5. Jhonson, ( working as Assistant Cook) Aged 43 years, S/o. Sourimuthu No. B-2, Sebestian Koil Street, Chemsione, Trichy - i 3. Edward George, ( working as Assistant Cook) Aged 40 years, 5/0. G. Rayappan, No. 5-C, Sebastian Koil Street, Chemstone, Trichy -1 4. A. Jayapal, (working as Tea Master) Aged 38 years, S/o. S, Agastin, No. 88, Anthoniya Koil Street, Sathyamurthy Nagar, East Bouleward Road, Trichy - 620 008, 5. Nirmal, ( working as Assistant Cook) Aged 41 years S/o.. Arockia Raj No. 88, Deenadayal Nagar, Alampatti Road, Nagamangalam, Trichy :~ 6. Thirumanickam (Working as Assistant Cook) Aged 40 years S/o. Rathinarn, Kamaraja Nagar, Thirupparai thurai, Trichy - 639 115 7. A. Ramesh Pandi ( working as Assistant Cook) Aged 31 years, S/o. Andlappan, No. 42.4, Nadar Street, Pandmangalam, Woraiyur, Trichy - 620 003. By Advocate M/s S.RamaswamyRajarajan Vs Union of India, rep., by The Principal General Manager, Bharath Sanchar Nigam Limited, Tiruchirapalli-1 By Advocate Mr.S.Udayakumar OA 645/2016 Applicant Respondents 4 3 OA 645/2016 ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) Heard learned counsel Mr for the applicant and Mr for the respondents. Learned counsel for the applicant seeks leave to amend the prayer clause forthwith. Permission Is granted and petition amended.
2. The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"i.To direct the respondent to declare the applicants as Government Employees and to regularize the service in respect of the 1% 277.3% sth and 6" applicants with effect from 01.10.91 and in respect of the 4"
and 7 applicants with effect from 1995 & 2000 respectively and to give them all consequential benefits and 2.70 pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case with cost."(amended as directed in the open court)
3. The brief facts of the case as stated by the applicant are as follows:
All the applicants are working In different categories such as Cook and Assistant Cook in the Telecom canteen, subsequently after forrnation of BSNL, known as BSNL Staff canteen for a long time from 1986 onwards till 1995 on casual basis but as their services are not regularised as per the order passed by the department on 10.03.1997 therefore the applicants made several representations to the respondents since there is no response till date aggrieved by the action of the respondents the applicants have filed the present OA and prayed for the aforesaid relief.
4. After notice the respondents have appeared through their counsel and filed a detailed reply and ralsed objections on the ground that these applicants are working in the unregistered canteens moreover these canteens are run from the contingency fund under the control of the committee. These applicants were nelther appointed by way of regular 4 OA 6453/2016 process of recruitment nor were sponsored by the employment exchange. Moreover, central government has not given any funds to the said canteen and the canteen is a temporary canteen and the BSNL is not managing tke same. The applicants being temporary employees In the temporary canteen are not eligible for the relied as prayed for. The respondents are guided oy the BSNL Instructions dated 24.04.2003 wherein it Is stated that the existing departmental canteens may have to be phased out by exploring the possibility of deployment of the canteen staff in areas where suitable vacancies are available in equivalent grades and also by not filling up the retirement vacancies of canteen staff. In the place of departmental canteen so phased out, canteen may be opened on contract basis and hence the question of new appointment of staff will not arise. Moreover the canteen is not departmental canteen and no-subsidy is given to run the canteen. When the BSNL is not involved with transaction of canteen, the applicants cannot seek employment with BSNL since none of the applicants have deen recruited in a proper manner and as such recruitment was not made on regular basis. Moreover the applicant at S].No.1 who is clalming to be aged 42 years in the year 2016, It seems that in the year 1986 when he was working In the canteen he was only aged about 12 years. Since the canteens are run more or less on adhoc basis, the workers engaged in the canteens are not entitled to claim the status of regular employee and the ratio which is observed by the Hon.Supreme court in the matter of MMR Khan Vs. Union of India dated 27.02.1990 is not at all applicable to the present case. Moreover, the Hon.Supreme court in CA No, 3874-3875/2014 in the matter of Mohan Singh and others Vs. Chairman Railway Board by its order dated 03.08.2015 have observed that since the appointment of the employee was not as per the regular recruitment procedure therefore they cannot seek the 5 OA 6453/2016 regularisation claim in an adhoc temporary canteen. Hence the respondents prayed for the dismissal of the OA.
5. The applicants have filed additional typed set of papers as well as rejoinder ta the reply. The applicants' counsel relied upon the following case laws and tendered the file as additional typed set:
(i)Decision of the Hon. Supreme court in M.M.R.Khan & Oré Vs. UOI dated 27.02.1990
(ii) Decision of the Hon.High court reported in ATJ 1999 (1) 128 dated 05.05.1998 (ii}Decision of the Hon.Supreme court reported in 1999 SCC (L&S) 1138 SC dated 04.08.1999
(iv) Decision of the Hon.Supreme court reported in 2000 SCC (L&S) 471 SC dated 11.04.2000
(v) Decision of the Hon.Supreme court reported in 2000 SCC (L&S) 884 SC dated 10.08.2000
(vi) Decision of the Hon.Supreme court reported in 2018 (2) SCC (L&S) 184 SC dated 27.04.2018
6. Learned counsel for the respondents also relied upon the order passed by the Hon.Supreme court in the matter of Official Liquidator Vs. Dayanand & Ors reported in (2008) 10 SCC 1 dated 04.11.2008 and & ors in the matter of Mohan Singh & Ors. Vs. The Chairman Railway Board & Ords In S.A.No,5874-5875/2015 dated 03.08.2015.
7. Heard MnRamaswamyrajarajan, learned counsel for the applicant and MrS.Udayakumar, learned counsel for the respondents and perused the records,
8. Learned counsel for the applicant while arguing has submitted that by letter dated 10.03.1997 the Department of Telecommunications (DOT) has 6 OA 645/2016 issued the guidelines for regularisation of unregistered canteen/Tiffin Rooms wherein it is stated that the DOPT has issued a circular dated 01.10.1991 giving guidelines to register the canteens which were not registered prior to this date and treat the employees working in such canteens prior to 01.10.1991 have to be declared as Government employees w.e.f 01.10.1991.
In this regard the order passed by the co-ordinate bench of this Tribunal at Ernakulam based on the decision of the Hon.Supreme court in the matter of MMR Khan & CK, Jha has been upheld by the Hon.Supreme court. Following with the same, the DOT has also issued this circular wherein it has been specifically stated as under:
"4,On the above analogy, it has now been decided that all canteens which were opened before 1.10.91 but could not be registered by the cut off date due to various reasons be allowed to continue to function as before. The employees working in such canteens will also be declared as government employees with effect from 1.10.91 in terms of the instructions issued vide Department of Personnel and Training O M No. 12/5.91-Dir.(C) dated 29.1.92. However the above benefit will accrue to the canteens on fulfilling the folowing conditions.
(a) that the Canteen/Tiffin rooms were set up by Departmental authorities. before 1* October, 91.and
(b) That the employees in the canteen/ Tiffin rooms were recruited on a proper manner and such recruitment was made on regular basis
5.In the accordance with the above concerned Ministries/Departments mav immediately review the cause of the Un Registered Canteen/Tiffin Rooms functioning the establishments. under their control and restart such of the closed Canteens/Tiffin rooms and also regularize the service of the employees who were before on ihe rolls of such canteens/Tiffin Rooms as on 1.10.91 on regular basis and declare them as Government employees jn terms of the. instructions dated 29.01.92. After regularization of the services of such employees they will be entitled to get all related benefits as are being accorded to these employees whose services. were earlier regularized by virtue of working in Registered Canteen.
6. The period when the affected persons were not in employment due to the closing down/ disbanded of the concemed Canteen / Tiffin Rooms will be regulated by grant of leave of the kind due and admissible. The period not covered by any kind of leave, may be regularized by grant of E.0.L, .
7, A list of such Un Registered Canteen/ Tiffin rooms and details of employees whose services have been regularized will be furnished as per annexed proforma to this department by 3.1.6.07.
8. Needless to. add that the concerned Ministry/Department should take utmost care'in examining the claims of the Unregistered Departmental Canteen/Tiffin Rooms furictioning under them and declare them as Regular Canteens only after ensuring that the above stipulated conditions have been met in each and every case,. The omus for executing the above decision in respect of individual 'will directly rest with the concemed Ministry 'Department,
9. In case of any doubt regarding the applicability of those orders in respect of a particular Canteen / Tiffin Rooms, the position thereon may be got clarified from this pe 7 OA 645/2016 department."
Accordingly, since the applicants who are working in the organisation viz., applicant na.1 working w.e.f 1986, applicant no.2 working w.e.f 1988, applicant no.3 working w.e.f 1988, applicant no.4 working w.e.f 1995, applicant no.S working w.e.f 1988, applicant no.6 working w.e.f 1988, applicant no.7 working w.e.f, 2000 in the said canteen which was opened in the year 1984. Even after the formation of BSNL w.e.f 01.10.2000, as per the said letter issued in the year 1997, steps were Initiated by the department though the steps were Initiated by the DOT by their fetter dated 01.1999/04.02.1999 wherein the names of the applicants mentioned as applicant no.i working as a Cook w.e.f 1986, applicant no.2 working as Assistant Cook w.e.f 1988, applicant no.3 working as Bearer w.e.f 1988, applicant no.5 working as Bearer w.e.f 1988, applicant no.6 working as Counter Clerk w.e.f 1988, and as far as concerned to the applicant no4 working as Tea master w.e.f 1995, applicant no.7 working as Assistant Cook w.e.f. 2000 and this fact is not disputed by the respondents in their counter. This proposal has been forwarded by the DE(Admn). from the office of the General Manager, Telecom Trichy to the Chief General Manager, Telecom, TN Circle, Chennai. Thereafter by letter dated 19.04.1999, the Assistant Director, Estate from the office of the CGMT, TN Circle to the General Manager, Telecom Trichy has asked the documents in respect of date of entry of each official and the copy of the attendance register since the documents sent are incomplete, therefore they have asked the date, month and year for the attendance of the said officials and whether these officials have been working without. any break. Accordingly, the detalls were forwarded by the DE(Admn) from the office of the GM, Trichy and it has been furnished that 8 OA 645/2016 these unregistered canteens are functioning from 1984 and still functioning and almost 350 persons served in the said canteen and presently 9 employees working and the list of the names of the employees with their designation and the date of appointment has also been furnished along with pay scale given to these persons who are working on adhoc basis and who are working continuously. Further, the canteen has been shifted to the government building w.e.f 30.06.1999, The 9 employees who are working in the canteen were paid from the contingency fund as well as the DE has specifically remarked that the department canteen is a must and it can be converted into departmental canteen. After formation of BSNL, the Assistant Director from the office of CGM, BSNL, TN circle by letter dated 08.10.2001 has again called for information In respect of these employees since attendance register is not made available for the period prior to 1992 as well as no other evidence to show that they have been working from the dates mentioned under the letter cited and it Is also instructed that regarding the registration of canteen Director (Canteen), New Delhi may please be contacted. Further by communication dated 13.07.2002 the Divisional Engineer of the BSNL has again asked the wages received for the entire period for the employees of canteen for whom regularisation is sought for as well as by communication dated 24.04.2003 it has been informed by the Joint DDG to all the Heads of Telecom circles and Telephone Districts and Telecom Administrative Officers In respect of opening of new canteens no permission has been granted to open new canteen In the BSNL by recruiting canteen staff. However, if the need for canteen Is felt it may have to be started on contractual basis only and the existing departmental canteen may have to be placed out by exploring the possibility of the deployment of the canteen employees in. areas where sultable vacancles are available in 9 OA 645/2016 equivalent rates and also by not filling up the retirement vacancies of canteen staff. In the place of departmental canteen so phased out, canteen may be opened on contract: basis,
9. Learned counsel for the applicant has relied upon various orders passed by the Hon.Supreme court wherein the same issue has been considered to regularise the services of the persons who are working in the non- recognised canteens more particularly while dealing into the issue the Hon.Supreme court has considered the casés pertaining to the Railway department and ordered in their favour. The relevant para of the said order is as under:
29, These arguments can be dealt with together, In the first instance, there is hardly any difference between the statutory canteens and non-statutory recognised canteens. The statutory canteens are established wherever the railway establishments employ more than 250 persons as is mandatory under 'the provisions of Section 46 of the Act while non- statutory canteens are required to be established under paragraph 283] of the Railway Estb, Manual where the strength of the staff is 100 or more. In terms of the said paragraph, the non- statutory canteens to be recognised have to be approved of by the Railway Board in advance. Every Rly. Administration seeking to set up such canteens is required to approach the Railway Board for their prior approval/recognition indicating financial implications involved duly vetted by the Financial Advisor and Chief Accounts Officer of the Railway concemed, It is only when the approval is accorded by the Railway Board that the canteen is treated as a recognised non-statutory canteen. By the sanction, the details in regard to the number of staff to be employed in the cantecn, recurring and non-recurring expenditure etc, are regulated. The only material difference between the Statutory canteen and non-statutory recognised canteen is that while one is obligatory under the said Act the other is not. However, there is no difference in the management of the two types of canteens as is evident from the provisions of paragraphs 2832 and 2833 which respectively provide for their management, Regarding the incidence of cost to be borne by the Railways again, as far as the Manual is concemed, the only additional obligation cast on the Administration, in the case of the statutory canteens is that in addition to the facilities given to the non-statutory canteens, the Administration has also to meet the statutory obligations in respect of the expenditure for providing and maintaining canteens arising from the said Act and the rules framed thereunder. A perusal of the relevant provisions shows that the said Act and the rules made thereunder do not make demands on the Administration for more expenditure than what is provided for in the Railway Manual for the non-statutory canteens, We have already referred to the service conditions applicable to the employees of the statutory and non-statutory canteens. Besides, while discussing the case of the employees in statutory canteens we have pointed out the relevant provisions of the Administrative Instructions on Departmental Canteens in Government
10 04 645/2016 Officers and Govt. Industrial Establishments. These Instructions are applicable to both statutory and non-statutory recognised canteens. The Instructions do not make any difference be- tween the two so far as their applicability is concerned. In fact these Instructions require that the canteens mm by engaging 'solely part- time daily-wage workers may be converted to departmental canteens (para. 1.3}, Hence we do not see why any distinction be made between the employees of the two types of canteens so far as their service conditions are concerned. For this very reason, the two notifications of December 11, 1979 and December 23, 1980 (supra) should also be equally applicable to the employees of these canteens. If this is so, then these employees would also be entitled to be treated as Tailway servants. A classification made between the employees of the two types of canteens would be unreasonable and will have no rational nexus with the purpose of the classification, Surely it cannot be argued that the employees who otherwise do the same work and work under the same conditions and under a similar management have to be treated differently merely because the canteen happens to be run at an establishment which employs 250. or less than 250 members of the staff, The smaller strength of the staff may justify a smaller number of the canteen workers to serve them. But that does not make any difference to the working conditions of such workers.
Hence learned counsel for the applicant has prayed for regularisation of the applicants since they are working in the organisation from 1986 onwards and accordingly they have to be regularised considering the date of appointment accordingly as per the circular dated 01.10.1991 w.e.f 01.10.1991 for applicant no.1,2,3,5 & 6 and as well as from 1995 and 2000 for applicant no, 4& 7 respectively.
10, On the other hand, learned counsel for the respondents vehemently Opposed the relief on the ground that the order of the BSNL dated 24.04.2003 [Is applicable only to departmental canteen with regular employees and it is not in favour of the applicants. He has stated that in the Supreme court judgment in MMR.Khan's case relied upon by the applicant, the Hon.Supreme court in para 32 has clearly held that as far as the employees in the non-statutory non-recognised canteens are concerned, thelr petitions are dismissed. Further the OM dated 20.03.1997 clearly states that only the canteens which were set up with departmental authorisation are entitled to the benefits under the OM and since this canteen is not set up with the prior approval and recognition of the P&T department in| OA 6435/2016 and DOT, it is not covered under the OM dated 20.03.2007. He has further relied upon the order passed by the Hon.Supreme court tn the matter of in the matter of Official Liquidator Vs. Dayanand & Ors reported in (2008) 10 SCC 1 dated 04.11.2008 wherein the Hon.Supreme court has held as under:
In paragraph 26, the Constitution Bench specifically referred to the conclusions recorded in paragraphs 45 to 50 of the judgment in State of Haryana vs. Piara Singh (supra) and observed:
"26. With respect, why should the State be allowed to depart from the nonmal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent--the distinction between regularisation and making permanent, was not emphasized here~can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in para 50 (of SCC) of Piara Singh is to some extent inconsistent with the conclusion in para 45 (of SCC) therein. With great respect, it appears. to us: that the last of the directions clearly runs counter to the constitutional scheme of employment recognised in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent."
He has also relied upon the order of the Hon.Supreme court in Mohan Singh & Ors. Vs. The Chairman Railway Board & Ords tn S.A.No.5874-5875/2015 dated 03.08.2015, the relevant portion of the sald judgment is as under:
17 Once that conclusion is reached, the result with respect to status of workers employed therein becomes obvious. In M.M.R. Khan, this Court has held - "Since in terms of the Rules made by the State Governments under Section 46 of the Act, it is obligatory on the Railway Administration to provide a canteen, and the canteens in question have been established pursuant to the said provision there is no difficulty in holding that the canteens are incidental to or connected with 'the manufacturing process or the subject of the manufacturing process. The provision of the canteen is deemed by the statute as a necessary concomitant of the manufacturing activity.
Paragraph 2829 of the Railway Establishment Manual recognises the obligation on the Railway Administration created by the Act and as pointed out earlier paragraph 2834 makes provision for meeting the cost of the canteens, Paragraph 2832 acknowledges that although the Railway Administration may employ anyone such as a Staff Committee or a Co- operative Society for the management of the canteens, the legal responsibility for the proper management rests not with such agency but solely with the Railway Administration.....We are, therefore, of the view that the employees in the statutory canteens of the Railways will have to be treated as Railway servants, Thus the relationship of employer and employee stands created between the Railway Administration and the canteen employees from the very inception."
12 OA 645/2016Learned counsel for the respondents has prayed for dismissal of the OA,
11. It is to be noted that admittedly the canteen was non-statutory functioning from 1984 and it is unregistered and as well as the applicant no.1 working w.e.f 1986, applicant no.2 working w.e.f 1988, applicant no.3 working w.e.f 1988, applicant no.4 working w.e.f 1995, applicant no.5 working w.e.f 1988, applicant no.6 working w.e.f 1988, applicant no.7 working w.e.f. 2000. It is to be noted that as per the letter dated 10.03.1997 a decision has been taken by the DOT that all canteens which were opened before 1.10.91 but could not be registered by the cut off date due to various reasons be allowed to continue to function as before, The employees working in such canteens will also be declared as government employees with effect from 1.10,91 in terms of the instructions Issued vide Department of Personnel and Training O M No. 12/5.91-Din(C) dated 29.1.92, However the above benefit will accrue to the canteens on fulfilling the following conditions.
(a) that the Canteen/Tiffin rooms were set up by Departmental authorities before 1% October, 91 and
(b) That the employees in the canteen/ Tiffin rooms were recruited on @ proper manner and such recruitment was made on regular basis
12. It is to be noted that correspondence made by DE on his letter dated ..01.1999/04.02.1999 he has given the details of 9 employees who were working in the said canteen prior to 1991 along with attendance register as well as it is also admitted that these applicants were working In the canteen against their designation on adhoc basis and their appointment was made only on adhoc basis and the canteen is also running on adhoc basis. The information has been provided that these applicants were not () 13 OA, 645/2016 recruited through employment exchange. From bare perusal of the record and as recorded above, there were lot of communications even exchanges between officials. Even after the formation of the BSNL, the. concerned authority has taken steps and called information from the DOT in respect of the regularisation of these applicants and other employees. It is to be noted that as observed by the judgments the matter has been considered by the Hon.Supreme court and once government has taken steps to register the said canteen which were not registered prior to 1991 and treat the canteen employees as government employees thereby the Hon.Supreme court has directed the concerned departments to regularise their services. Moreover in the judgment relied upon by the respondent counsel in the matter of MS & Ors. Vs. Chairman Railway Board and Ors while dealing Into the issue and following with the provisions, the Hon'ble Supreme court in Paragraph 18 though set aside the order passed by the Hon'ble High court however the Hon.Supreme court has observed thus:
18 Therefore, in the light of the settled principle enunciated hereinabove, we hold that the subject Canteen is a 'Statutory Canteen' under the Factories Act, 1948 and that the learned Single Judge had arrived at the correct conclusion. In our opinion, the Division Bench of the High Court was not correct in taking a contrary view, We, therefore, allow these Appeals, We set aside the impugned Judgment passed by the.
High Court, and direct the Respondents to treat the subject Canteen at Moradabad as a Statutory Canteen either under Section 46 of the Act or the relevant clauses of the Indian Railway Establishment Management. However, so far as the Appellants are concerned, we find it difficult to condone or ignore the fact that they were not appointed as per the regular recruitment procedure, To pass an order regularizing the services of all workers employed therein would necessarily imply ratification of appointments given outside the Constitutional scheme. We, therefore, direct the Réspondents to consider regularizing the services of the Appellants presently serving as canteen workers in consonance with the principles laid down in Secretary, State of Kamataka v. Uma Devi AJR 2006 SC 1806 and take requisite action within six months of the receipt of this Judgment. Further, as-and when the subject posts fall vacant the Respondents shall be bound to fill the posts by a regular process of selection. The Appellants in the present case shall be allowed to compete in the. regular recruitment and the Respondents shall grant to them appropriate age relaxation as well as grant proper weightage for their having worked in the subject Canteen, Pare 14 OA 645/2016
13. Itis also to be noted that specific representations have been submitted by the applicants, however, the respondents have not replied to thelr representations but after notice from this Tribunal they have filed reply in detail and as recorded above opposed the relief. However, the stand taken by the respondents does not stand in the scrutiny of the eyes of law. It is totaily contradictory to not only their circular dated 10.03.1997 as well as the admitted position and correspondence exchanged between the authorities. Therefore the applicants are entitled for the relief as per the OM dated 10.03.1997 as well as the applicants 4 & 7 are entitled as observed by the Hon.Supreme court in the matter of Mohan Singh Supra, fin view of the principle laid down by the Secretary State of Karnataka Vs. Uma Devi, the OA fs allowed. Respondents are directed to treat the applicants as Government employees since they are working in the said unregistered canteen functioning from 1984 and to regularise the services of the applicant n0.1,2,3,5 & 6 w.e.f 01.10.1991 as well as the services of the applicant no.4 & 7 have w.e.f 1995 & 2000 respectively. The OA is allowed along with consequential benefit. The above said exercise has to be carried cut within a period of four months from the date of receipt of a certified copy of this order, No order as to. costs.